Martinez, et al v. USA

Filing 16

ORDER Directing the filing of Plaintiff's Motion as a First Amended Complaint: The Clerk of the Court shall file plaintiff's "Motion to file First Amended Complaint as order by the Court Pursuant to FRCP" as the first amended complaint nunc pro tunc to 3/23/07. Signed by Judge M. James Lorenz on 3/28/2007. (mjj, ) (mam).

Martinez, et al v. USA

Doc. 16

Case 3:06-cv-01260-L-JMA

Document 16

Filed 03/28/2007

Page 1 of 2

1 2 3 4 5 6 7 8 9 10 11 VICTOR MARTINEZ, 12 13 v. 14 UNITED STATES OF AMERICA, 15 16 17 Defendant. Plaintiff, ) ) ) ) ) ) ) ) ) ) ) Civil No. 06-CV-1260-L(JMA) ORDER DIRECTING THE FILING OF PLAINTIFF'S MOTION AS A FIRST AMENDED COMPLAINT UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Plaintiff Victor Martinez filed a Complaint under the Federal Tort Claims Act contending

18 that while in the custody of the Bureau of Immigration and Customs Enforcement he suffered 19 violations of his civil and constitutional rights. Plaintiff sought and was granted leave to 20 proceed in forma pauperis. Plaintiff also sought appointment of counsel which the Court denied. 21 See Order filed January 8, 2007 [doc. #9]. In that same Order, the Court performed a sua sponte 22 screening of the Complaint under 28 U.S.C. § 1915(e)(2) and found that plaintiff had failed to 23 state a claim. See FED. R. CIV. P. 12(b)(6). The Court found that "[t]here is no allegation in 24 Plaintiff's Complaint that he was the victim of any tort under the laws of the State of California. 25 Thus, because Plaintiff has failed to identify a cognizable state law tort claim, his claim under 26 the Federal Tort Claims act must be dismissed for failing to state a claim." Id. at 4. Plaintiff was 27 given 30 days from the date of the Order, January 8, 2007, in which to file an amended 28 complaint.
06cv1260

Dockets.Justia.com

Case 3:06-cv-01260-L-JMA

Document 16

Filed 03/28/2007

Page 2 of 2

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Plaintiff then sought a six-month extension of time in which to file his amended

2 complaint. The Court granted plaintiff until March 23, 2007 to file an amended complaint. On 3 March 20, 2007, plaintiff sent for filing a document entitled "Motion to file First Amended 4 Complaint As order by the Court Pursuant to FRCP." The purported "Motion" appears, 5 however, to be plaintiff's first amended complaint.1 Accordingly, IT IS ORDERED that the 6 Clerk of the Court shall file plaintiff's "Motion to file First Amended Complaint As order by the 7 Court Pursuant to FRCP" as the first amended complaint nunc pro tunc to March 23, 2007. 8 IT IS SO ORDERED.

9 DATED: March 28, 2007 10 11 12 COPY TO: 13 HON. JAN M. ADLER UNITED STATES MAGISTRATE JUDGE 14 15 Victor Martinez A#30-700-636 16 408 S. Serrano Avenue Los Angeles, CA 90020 17 Sam Bettwy 18 Assistant United States Attorney 880 Front Street 19 San Diego, CA 92101 20 21 22 23 24 25 26 27 It appears plaintiff has had a change of address that he has not brought to the Court's attention. Plaintiff is admonished that it is his obligation to file with the Clerk of the 28 Court and serve on opposing counsel any and all notices of change address.
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06cv1260
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M. James Lorenz United States District Court Judge